Wednesday, September 26, 2012

Bail Bond Companies Profit While Poorest Defendants Remain in Jail

By David M. Reutter and Mel Motel

As America’s
prison population has swelled over the past three decades to become the largest
per capita in the world, the number of special interests that feed off the
prison industrial complex has grown. The expansion of companies that benefit
from crime and incarceration is no accident; it is the result of extensive lobbying
by businesses that profit from other people’s misfortune – primarily the
misfortune of the poor, who are vastly overrepresented in our nation’s prisons
and jails.

Often
overlooked among the special interests that profit from the criminal justice
system in the U.S.
is an industry that portrays itself as one dedicated to helping people get out of jail. In actuality, though, it is
involved in keeping people incarcerated in order to protect its bottom line.

Just 20
years ago in most jurisdictions nationwide, the services of bail bondsmen were
only required by defendants who had a high bond set by the court, which
typically occurred in cases involving serious crimes or repeat offenders. Most
defendants were released through publicly-funded pretrial services that granted
release on personal recognizance based on a promise to appear at future court dates.

Currently only
Illinois, Kentucky,
Oregon and Wisconsin prohibit commercial bail bondsmen.
Other jurisdictions have laws that allow, and sometimes encourage, the use of bail
bond companies. This expansion of the bonding industry has contributed to high
jail populations.The story
of Raymond Howard, 34, illustrates the connection. Howard landed in jail in
Lubbock County, Texas on a felony check forgery charge; because he had no
history of violence and had always showed up for court, he needed only $500 to
make bail. But his inability to post that small amount ended up costing
taxpayers over $5,000 to keep him incarcerated as a pretrial detainee.

The cost,
however, did not end there. Howard ended up with a three-year prison sentence.
Defense attorneys said that had he been able to make bail he most likely would
have received probation, as defendants who are free while awaiting trial are
able to pay restitution and show they are making rehabilitative efforts.“If I can
get out and hire an attorney, I can go to rehab. I can get my job back. And when
I get to court, my lawyer has something to work with,” said Lubbock County
pretrial detainee Doug Currington, who was unable to post $150 bail for trying
to steal a television. “The lawyer can say, ‘This guy has been clean. He’s
voluntarily gone to rehab. He hasn’t committed another crime. He has the same
job. He’s paying child support.’ They’re not going to want to throw you back in
jail.”

Another
example is Leslie Chew, who was homeless when he was arrested for trying to
shoplift four blankets in December 2008 and was booked into the Lubbock County jail. Unable to post $3,500 bail
or pay 10% of that amount to a bondsman, he remained incarcerated for eight
months at taxpayer expense.

There are
at least 500,000 people accused of crimes who stay in jail each year because
they cannot afford to make bail. The bail bond industry vigorously fights to
keep them there, in hopes they will eventually come up with the money to pay a
bondsman. This epitomizes the socioeconomic disparity that underpins the U.S. criminal
justice system: Defendants who can afford to pay a bonding company are released
from jail, while poor defendants who cannot remain behind bars – sometimes for months
or years while awaiting trial.

Rather than
release defendants on their personal recognizance, despite statistics that indicate
the vast majority show up for their court dates, jurisdictions such as Lubbock County have gutted their publicly-funded
pretrial release programs. The remaining such programs are under attack by
bondsmen.

The bail
bond business is a cutthroat industry that leaves no room for pretrial release
services. As Ken Herzog, the office manager of Lubbock Bail Bond, was working
to make bail for a prisoner, he said a clerk advised him that pretrial release
was trying to get the same prisoner out of jail.

“I said, ‘Oh
no, they ain’t,’” Herzog told the clerk. “So, I went to the judge that signed
the motion for pretrial and told her what was up. They had no business even
talking to this person. They pulled their bond, and I got the person out of
jail.” For a fee, of course.

Herzog told
Steve Henderson, who runs Lubbock
County’s parole and
pretrial release program, to stay away from his paying clients. “If he gets in
my business, I told him, ‘I do this for a living,’” Herzog said, referring to Henderson. “I said, ‘You
don’t do that. We set this thing up.’ I said, ‘I’ll work with you any way I
can, but you’re not going to get in my business.’ Well, he backed off.”

Lobbying by
the bail bond industry has resulted in public officials moving away from
pretrial release services in some jurisdictions. Florida’s
Broward County is one example of such lobbying
gone amok. For context, a judge had found in 2007 that overcrowding in the county’s
jail system was unconstitutional.

Broward County was thus facing the prospect of
spending $70 million to build a new jail. County commissioners, however, voted
to double the budget of pretrial release services to let more prisoners out to
reduce overcrowding. The program was an amazing success. Defendants were
showing up for court, and within a year the sheriff closed an entire wing of
the jail due to the decrease in population, saving taxpayers $20 million annually.

Broward County’s bail bondsmen then led a charge
to cut the successful pretrial release program. “We’re tenacious; we do our
job,” said bondsman Wayne Spath. “People should not just be released from jail
and get a free ride. I mean, this is the way the system’s got to work.” And the
way the system works can be very profitable for bail bond companies.

After all,
for every detainee released through a pretrial release program, that’s one less
potential fee available to bondsmen, who usually collect 10 percent of the full
bond amount from their paying customers.

“The
bondsmen think pretrial is stealing their business,” noted Broward County Judge
John Hurley. “But I don’t want to get into the mix. I don’t want to get into
the political aspect of all this.”

Bail bond
companies in Broward
County hired a lobbyist
and distributed about $23,000 in donations among county commissioners in the
year before the commission voted on an ordinance that gutted the pretrial
release program by limiting defendants who were eligible for the program. The
commissioners vigorously denied the contributions had influenced their votes.

Herzog put
a nice spin on such political donations by bondsmen. “We take care of the ones
who take care of us,” he said. “We don’t want to pay anybody off, per se. We
just want to support the people who are trying to help our business.”

Now,
thousands of people in Broward
County sit in jail
because they cannot afford to make bond. The county’s public defender, Howard
Finkelstein, decried the lobbying by bondsmen that resulted in poor defendants
languishing behind bars simply because they can’t afford to be paying customers
for bail bond companies.

“Don’t tell
me that you’re doing this for the good of the people,” Finkelstein said.
“You’re doing it for your own good, that’s fine, but then you shouldn’t have a
seat at the table when public policy is made.”

Bondsmen
have pushed legislation in Iowa, North Carolina, Tennessee
and Virginia
to limit pretrial release services, increase reporting by pretrial release programs
and encourage the use of commercial bail bonds. The legislation, known as the
Citizen’s Right to Know Act, was backed by the American Legislative Exchange
Council (ALEC), an influential organization that brings lawmakers and
private-sector companies together to produce model legislation. [See, e.g.: PLN, Nov. 2010, p.1; Jan. 2002, p.1]. The
Citizen’s Right to Know Act passed in Texas in
1995 and Florida
in 2009.

“For those who believe in limited
government and the supremacy of the free-market, these agencies [pretrial
release programs] are frustrating as they replace a well-functioning
private-sector model – commercial bail which operates at no cost to the
taxpayer – with a less efficient government alternative,” an ALEC publication
stated.

Not
coincidentally, the American Bail Coalition (ABC), a member of ALEC since 1993,
has helped push a dozen model bills though ALEC that benefit the bail bond
industry, including the Uniform Bail Act. ABC president William Carmichael
currently sits on ALEC’s Private Enterprise Board, while ABC executive director
Dennis Bartlett served on ALEC’s Public Safety and Elections Taskforce before that
taskforce was eliminated in April 2012.

ABC senior
legal counsel Jerry Watson, who chaired ALEC’s Private Enterprise Board from
2006 to 2008, received ALEC’s Leadership Award. “There is no way to accurately
evaluate the benefits thus far to our industry by our involvement in ALEC,” he stated.

A federal
version of the Citizen’s Right to Know Act was introduced on May 12, 2011 (HB 1885);
the legislation would require state and local pretrial release programs that
receive federal funding to issue monthly reports to the U.S. Department of
Justice. Such reports would include “a list of each charge filed against each
individual accepted into a pretrial release program ... a list of all prior
criminal convictions of each individual accepted into a pretrial release
program ... a list of the court appearances required of each individual
accepted into a pretrial release program ... [and] a list of each instance during
the reporting period on which an individual accepted into a pretrial release
program ... failed to appear at a scheduled court appearance,” as well as an
annual report on the program’s budget. Such burdensome requirements do not
apply to bail bond companies. No action has been taken on HB 1885, which was referred
to a committee.

During Florida’s 2010
legislative session, the bail bond industry pushed a bill that would have
allowed a defendant to participate in pretrial release only if a judge found that
he or she was indigent, and pretrial release services would have been
restricted to defendants charged with the least serious crimes.

Florida sheriffs opposed
the bill, contending that it would make it harder for defendants to get out of
jail and would cost taxpayers millions to house and feed such pretrial
detainees. When it was learned that Accredited, a prominent Florida bail bond insurer, had held a
fundraiser that generated $10,000 for then-state Rep. Sandy Adams only three
days before she pushed the legislation through her committee, the House
Criminal and Civil Justice Policy Council, sheriffs cried foul.

“This whole
thing smells,” said Hillsborough County Sheriff Col. Jim Previtera. The sheriff
of Pinellas County, Jim Coats, agreed. “It is very clear
to me that when you have special interests with influence, these influences
sometimes get preference over taxpayer’s interest.” Ultimately, the bill died
in the House.

The
business of bail bonds is all about profit, and the industry has been cited as
a threat to public safety in Washington
state. Just a few days before Thanksgiving in 2009, Maurice Clemmons was bonded
out of jail by a bail bond company. That weekend he killed four Lakewood police officers
in a coffee shop.

Clemmons
was allowed to pay less than five percent of his $190,000 bond by Jail Sucks
Bond Company. While he put up a house worth more than his bail, he had quit
paying his mortgage and was facing foreclosure. The bonding company claimed it didn’t
know about Clemmons’ mental health issues or prior criminal record.

Bondsmen
contend they are held accountable and protect the public. In actuality, they
have a sweet deal. They usually charge defendants 10 percent of the bond needed
to get them out of jail, which is nonrefundable. But in Lubbock County, Texas
they pay the county only five percent of the bond if the defendant fails to
appear in court.

Thus, they can
make money by doing nothing at all, as most bail jumpers are not caught by bondsmen
or bounty hunters. “More often than not, the defendants are rearrested on a
warrant that’s issued after they fail to appear,” noted Beni Hemmeline, a Lubbock County prosecutor.

Additionally,
even when defendants on bond flee and the bonding company is required to pay
the full bond amount, sometimes they don’t. In Harris County, Texas, for
example, bail bond companies were found to owe the county over $26 million in
unpaid bond forfeitures. When the county tried to collect, some bonding
companies contested the collection efforts in court while another filed for
bankruptcy. [See: PLN, Dec. 2010,
p.23].

PLN has previously reported on other problems
and abuses involving bonding companies in California,
Connecticut and New Jersey, including unpaid bond
forfeitures and illegal solicitations of detainees by bondsmen. [See: PLN, Dec. 2007, p.34].

Meanwhile,
the bail bond industry has continued to try to expand its influence. In June
2011, over the objections of judges and law enforcement officials, the Wisconsin legislature included a provision in the state’s
budget to permit bonding companies. The American Bail Coalition advocated for
the change; Wisconsin
is one of four states that prohibit bail bond businesses. Governor Scott Walker
vetoed the provision, however, saying he supported it but wanted the issue
addressed in separate legislation.

“Anytime
you place profit-driven organizations in control of an individual’s liberty,
corruption must be a major concern,” said Wisconsin
state court judge John R. Storck, who chairs the state’s Committee of Chief
Judges. “The bail system unfairly penalizes low-income defendants who can’t
afford the un-refundable fee. It subverts the justice system, because
defendants who can afford to buy their freedom – even those that may pose a
relatively greater risk – are free to go at a much lower cost than under the
current system.”

The bail
bond industry, through ALEC, is also pushing legislation – called the
Conditional Early Release Bond Act – that would require some prisoners who are released
early to post bonds to ensure their good behavior. If they violate the terms of
their release and are not returned to custody within a specified time frame,
the bonding company will forfeit the full bond amount to the state.

This
creates an additional, potentially huge market for bail bond companies,
particularly in states that may be inclined to adopt such “post-conviction bond”
programs in order to reduce their expensive and overcrowded prison systems. As
with regular bonds, however, they would only be available to prisoners who can
afford them. Versions of the post-conviction bond legislation have been
introduced in several states, including South Dakota
and South Carolina.

Only
the courts and criminal defense organizations seem interested in reining in the
bail bond industry. For instance, on March 12, 2012, the Ohio Court of Appeals found
that a state law prohibiting the solicitation of bonds at the courthouse and on
jail property did not violate the First Amendment. The appellate court held, in
part, that “because arraignments are often a source of anxiety and distress for
citizens, [the state] has a substantial interest in protecting those who are
emotionally vulnerable from the undue influence of bondsmen.” See: In reSuitability of Debra Henneke, Court of Appeals, 12th
Appellate District of Ohio, Case No. CA2011-05-039; 2012 WL 764888.

Also, on July 30, 2012, the
National Association of Criminal Defense Lawyers (NACDL) announced the approval
of the organization’s “first major bail reform policy proposal in over 25
years.” According to NACDL president Steven Benjamin, “The proposal emphasizes
release over detention, with a preference for personal recognizance in most
cases. For those persons who do not qualify for release on personal
recognizance, NACDL supports standards requiring judicial officers to release
the defendant with the least onerous conditions possible.”

NACDL noted that “Financial bail
(often known as cash or secured bonds) disproportionately disadvantages
indigent and working class defendants who lack the financial resources to
secure release, resulting in unnecessarily prolonged periods of pretrial
detention, even though they may pose no substantial risk of flight or danger to
the community. Pretrial detention not only results in such collateral
consequences as loss of employment and eviction from housing, [but] detained
individuals are markedly disadvantaged in assisting counsel in preparation for
trial.”

No doubt, the bail bond industry
will oppose NACDL’s policy proposal.

David Reutter, a PLN
contributing writer, is currently incarcerated in Florida; Mel Motel is
employed by Prison Legal News (PLN) as a research assistant at our main office in Brattleboro,
Vermont.

Note: JPI has named September JPI Bail Month and has published a
series of reports on bail, for-profit bail bonding and will conclude with a report on the
community impacts of bail bonding. JPI has also hosted a series of events throughout the month including panel discussions and conference calls. The finale event is Thursday September 27 in Washington, DC. RSVP by clicking here.

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Great site on bail bonds. Good points on the proposal that has been made. How will this affect sacramento bail bondsman and how to gain those. Need to keep in mind the money that is spent and saved. Legal issues, people. Keep on posting.

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Neither Cash (10%) bonds or surety bonds help if you dont have the money. my son is on a 10% bond that the court won't give a reason for not reducing. This county requires cash only and you cannot use a bail bond company so we are screwed by both ends.

I somewhat agree that often law enforcement catches bail jumpers, but what about when they don't? I know tons of Las Vegas bail bondsmen that pay thousands of dollars of forfeitures to the courts each year. It sounds like the courts make out too.

Come on! You cannot be serious? Are you really going to blame bonding for the gentleman with the 500.00 forged check? What pathetic attorney could not get him out on an ROR or get him probation? What did you conveniently leave out? He may not have had a violent history, but....? Furthermore, I have worked in the criminal justice system for 20-years, I have never, never, heard of a bondsmen not taking payments, especially if the fee was less than $1,000. I can also tell you that a Judge, in this State, can suspend a bondsmen from writing in their circuit, so their is no bondsmen telling them what is up if that Judge wants someone out on an OR bond or not. However, pre-Trial release programs have just as many failures, new offenses, and absconders.

Also, come on, you want to blame someone on the awful maltreatment of the poor in our justice system lets look at the overworked, understaffed public defenders office and talk about the huge fees of the Criminal Defense Lawyers charge, you think it is great that they want to get rid of bondsmen, they are probably thinking that means they can just raise their fees then! Bonding, as a business, has been around for a very long time. Yes, there are some awful, horrible companies and individuals out there and like any industry, I am sure they are fighting for as much business as they can get and you found some that are not paying their bills, just like you don't want inmates and parolees painted with a wide-brush you be careful using those same strokes. Every industry, group, and company has it's good, bad and indifferent. We can talk about those two in California last week that murdered and raped 5 woman, while on parole, wearing GPS -units. Based on your logic we do away with parole, do away with early release or pre-trial release on electronic monitoring, and all supervised release, pre-trial and post conviction.

The purpose of bail bonds are twofold. First, it allows people to be free from incarceration while the criminal process is proceeding. Second, it acts as a guarantee that a defendant will show up to court or they forfeit their money and bail bondsman do all this legal work.Los Angeles Bail Bonds

Some times if you want to get bail and you don't have enough cash as recommended by the judge.In such case the defendant can also pay with property. The court will get a lien on the property in the amount of the bail, and if the defendant doesn’t show up in court, the court will put stay on the defendant property.Bail Bonds in Milton